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Q&A: The answers to your questions about the Eighth Amendment referendum

You’ve been submitting your questions – and here are the answers.

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In our Q&A: Eighth Amendment Referendum series, we are answering questions our readers have submitted in relation to the upcoming vote on 25 May.

TheJournal.ie wants to provide information to all voters to ensure they have answers to any and all questions they have before going to the polls.

We have answered your questions so far below but if you have any other queries, please send them to referendum@thejournal.ie. We’ll continue to update this post over the coming days with those new questions, or outstanding ones from the past few days.

(Before we get started, if you need a refresher on what the Eighth Amendment actually is, we’ve got you covered here.)

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You will be voting on whether or not to approve the Thirty-Sixth Amendment to the Constitution Bill. If approved, this Bill (which you can read here) would see the text of 40.3.3 of the Constitution being removed (repealed) and replaced.

The question on the ballot paper (which will look like the picture below) will be:

  • Do you approve of the proposal to amend the Constitution contained in the undermentioned Bill?

Voting Slip

You will vote by marking an X in either the Yes box or the No box. You are not to mark both boxes or make any other mark on the ballot paper, or your vote will not count.

Reporter Aoife Barry looks more at exactly what that 36th amendment, if passed, would do here.

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In line with what the Oireachtas Eighth Amendment Committee recommended, the government plans to bring in new laws that would allow abortion without restriction up to 12 weeks of pregnancy  – again, only if the Eighth is repealed – through a GP-led service.

The draft legislation will have to be debated and signed off on by both houses of the Oireachtas (the Dáil and the Seanad). Elements of it may change during this process. You can read more about how a Bill becomes a law here.

The use of abortion pills and pregnancy as a result of rape impacted the decision to choose 12 weeks specifically. TheJournal.ie‘s Orla Ryan has delved into those reasons more here.

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If the referendum is passed on 25 May, the Thirty-Sixth Amendment of the Constitution Bill 2018 will allow repealing (removing) Article 40.3.3 and replacing it with this line:

Provision may be made by law for the regulation of termination of pregnancies.

This means that the Oireachtas can legislate for the termination of pregnancies, and paves the way for legislation to be drafted regarding abortion which wouldn’t be affected by the Constitution.

It would mean that the right of the unborn is no longer in the Constitution, so any abortion law would not have to be made with regard to this former constitutional right. Up until now, any laws on abortion have had to be interpreted with regard to the Eighth Amendment, in order to be found constitutional.

In short:

If the public vote to repeal the Eighth Amendment from the Constitution it will be removed, and politicians will then be given the power to legislate to regulate abortion in Ireland.

Just like any other Bill, the legislation – the draft version that is prepared right now, or any future changes – will have to pass all the normal processes involved in a Bill becoming a law. That can sometimes be a straightforward process (say, for example, the recent Domestic Violence Act) but, at other times, it can take years and be dragged through endless changes and iterations (take the Public Health Alcohol Bill which politicians are still trying to get over the line after it was held up for two years in the Seanad and by various amendments).

Our political reporter Christina Finn has taken a more indepth look at this here.

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The draft legislation put forward by Health Minister Simon Harris proposes to legalise abortion up to 12 weeks in any circumstances.

After 12 weeks, the legislation says a termination of pregnancy would be lawful if two medical practitioners certify the following three things at the same time:

  • there is a risk to the life of the pregnant woman or a risk of serious harm to her
  • the foetus has not reached viability
  • and the termination of pregnancy is an appropriate way to avert the risk.

Viability is at approximately 23 to 24 weeks, which is roughly six months pregnancy. The two doctors – one of whom would be an obstetrician – would have to agree that all of these conditions were being met.

Reporter Michelle Hennessy has a longer explainer on the matter here.

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Reporter Aoife Barry carried out a Factcheck on this claim, which has been made on a number of posters in relation to this referendum campaign.

TheJournal.ie Factcheck found the claim was unproven, meaning “the evidence available is insufficient to support or refute the claim”.

See how that verdict was arrived at here.

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There is little consensus of when life begins but reporter Gráinne Ní Aodha has put together a guideline, with medically accurate pictures, of what happens when during pregnancy – from week 5 through to viability at six months to birth.

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More than 170,000 women and girls have travelled to another country for an abortion since 1980.

Some 3,265 females travelled from Ireland to the UK for abortions in 2016, the latest year for which we statistics are available.

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For a deeper breakdown of these figures, click here.

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This is one of the most difficult topics of the campaign.

Campaigners are quick to point out that organisations advocating and representing people of all abilities and disabilities have asked for their members not to be used in the debate.

However, it was a common question posed to us as part of our Q & A series.

The Institute of Obstetricians and Gynaecologists issued a statement to give “factual background information to inform the debate”.

It says that typically women first book for ante-natal care when they are between 12 and 20 weeks pregnant. The statement continues:

“During this time women who are pregnant will visit a midwife and have a basic scan and blood tests. These tests are not to screen for abnormalities but in very rare cases, abnormalities can be observed. This is what is offered through the public health system. Women who access private health care services can obtain a scan earlier than 12 weeks.”

Commenting on the possibility of a test being carried out from nine weeks pregnancy, the Institute explains:

“A second method of screening is a blood test to analyse free fetal DNA in the mother’s blood stream. This test (e.g. Harmony, Panorama) can be performed from nine weeks onwards. These tests cost upwards of €500 and are not funded by the State which is an obvious limiting factor for many women.

“If organised through the public system, women still have to pay for it. There is no facility in Ireland to analyse the samples so they have to be sent to the UK or the USA for analysis. Results are generally available within two weeks. These tests are not 100% reliable, and so a further, diagnostic, test must be performed to confirm or refute the diagnosis.”

Here, Dr Peter Boylan explains exactly how a woman can check for disabilities early in her pregnancy in Ireland.

Source: TheJournal.ie/YouTube

More details are available form the Institute here.

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Pregnant women who have received diagnoses described as ‘fatal foetal abnormalities’ (FFAs) by their doctors are not permitted lawful terminations in Ireland.

The government has, in the past, already expressed a desire to put in place laws to allow women to access abortions if they receive a fatal foetal diagnosis. Two health ministers – James Reilly and Simon Harris - addressed the issue when proposals on FFA were put before the Dáil in 2013 and again in 2016.

Each time they were advised by the Attorney General that their hands were tied by the Constitution.

The Eighth Amendment acknowledges the equal right of the life of the mother and the unborn baby - even if the baby is not expected to live for more than a few minutes outside of the womb after birth. The government’s legal advice and court rulings over the years have backed up this position.

This means if the Eighth Amendment remains part of the Irish Constitution, the government cannot amend current laws or pass new legislation to allow for terminations in these cases.

There’s a deeper examination of these issues here and here.

[Update 21 May : There have been diverse opinions on this subject in recent days, with a group of lawyers campaigning for the No side saying that an amendment to the Constitution, rather than full repeal, could have dealt with hard cases such as fatal foetal abnormalities and rape. This is disputed by lawyers campaigning for the Yes side.]

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WOMEN WHO BECOME pregnant as a result of incest or rape can not currently access lawful terminations in Ireland for that reason.

The Protection of Life During Pregnancy Bill 2013 does allow for the termination of a pregnancy in Ireland, but only in three specific circumstances:

  • A “real and substantial risk” of loss of life from physical illness
  • A risk of immediate loss of life from physical illness in an emergency
  • A “real and substantial risk” of loss of life from suicide

If a woman is pregnant as a result of rape, but doctors do not believe there is a real and substantial risk of loss of life, she will not be able to access a termination.

Many claims have been made during this campaign that rape and incest cases could be legislated for without repealing the Eighth Amendment, or by amending the Eighth Amendment but retaining the right to life of the unborn.

It has become a point of legal discussion – with lawyers taking a variety of positions.

A group of lawyers advocating for a No vote have said that so-called ‘hard cases’ could have been dealt with by an amendment to the Constitution or through legislation. Writing in TheJournal.ie, Benedict Ó Floinn, a practising barrister in the Four Courts, argued:

It was legally possible for the Government to have crafted a proposal which was limited to the ‘hard’ cases that pluck at the heartstrings of us all. They chose not to. Instead, they gave in to the demands of a small minority who believe that they know what is best for us and who advocate for abortion on demand.

The Oireachtas Committee which made recommendations to the government on the Eighth Amendment before the referendum was called looked at the possibility of legislating specifically for these cases.

Its final report expressed concerns about doing this:

While the Committee accepts that it should be lawful to terminate a pregnancy that is the result of a rape or other sexual assault, it has concerns about whether the recommendation of the Citizens’ Assembly can be implemented in practice.

These concerns arise from:

(a) the difficulty presented in the verification of a rape or sexual assault, and

(b) the opinion of the Committee that:

  • (i) there is a need to avoid the further traumatisation of a victim of rape or sexual assault that would arise if some form of verification was required;
  • (ii) a requirement for a verification process is likely to be complex or even unworkable in practice.

The committee also noted the “underreporting of rape and sexual offences to An Garda Síochána and the authorities generally in Ireland”.

It said it would be “unreasonable to insist on reporting as a precondition for exercising any right to terminate a pregnancy that has resulted from rape or sexual assault”.

It is for these reasons the committee recommended permitting a termination with no restriction as to reason up to 12 weeks. (See more on that here.)

On the opposite side of the legal debate to O Floinn is Senior Counsel John Rogers, a member of Lawyers for Yes, who served as attorney general from 1983 to 1987. He recently explained why he believes attempting to make Constitutional provision for terminations in cases of rape would be problematic.

“You’d have endless case law, cases going to the courts, on the question of whether or not there was a rape at all,” he said, responding to the earlier suggestions that a Constitutional amendment would suffice for these cases.

“That would be an interminable process. It would end of course, but it would be a very dilatory, slow process because it would involve the making of an inquiry about whether or not there had been a rape or a consent. Which is the equivalent of a criminal trial in effect.”

The committee came to its conclusions following testimony from constitutional experts, including assistant professor at Trinity College David Kenny and Professor Fiona de Londras who described such suggestions as “unworkable”.

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However, O Floinn insists that we should scoff at the idea that only simple issues on which we are all agreed should make the Constitution.

TheJournal.ie looks further at this here.

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Pregnancy during treatment for cancer should be avoided but, of course, women may unintentionally become pregnant while receiving cancer treatment or shortly afterwards. Others may be diagnosed with cancer while already pregnant.

Pregnant women can receive cancer treatment but the type of treatment they receive will depend on a number of factors including:

  • the type of cancer;
  • whether the cancer has spread from its origins;
  • the stage of the pregnancy;
  • and the woman’s overall health.

A number of doctors who are in favour of repealing the Eighth Amendment have said it has a chilling effect on their work and can impact the type of treatment (not just for cancer) pregnant women receive.

Here is Peter Boylan explaining how it can also impact on women being treated for other illnesses.

Source: TheJournal.ie/YouTube

Orla Ryan has also examined further cases in this piece here.

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If the Eighth Amendment is repealed, and the government legislate for abortion as planned in its General Scheme, abortion will not be legal up to birth for any reason.

Head 4 deals with situations where there is a risk to life or serious health to the mother. In these cases, if two doctors deem that the risk can only be averted through a termination, they also have to certify that the foetus has not reached viability.

If it has, an early delivery would be the option undertaken by doctors caring for the woman and her unborn.

Current law also allows for same. The Protection of Life During Pregnancy Act 2013 legislated for the X Case, during which the Supreme Court ruled (a judgement subsequent referenda showed the people of Ireland agreed with) that where a woman’s life was at risk by suicide, she was entitled to a lawful abortion in Ireland.

The legislation outlines how three doctors, including one obstetrician and two psychiatrists, must certify that there is a “real and substantial” risk to life by suicide and that the risk of her dying can only be averted through a termination.

In 2014, three terminations were carried out because of a risk to the life of the mother by way of suicide.

In 2015, three terminations were carried out because of a risk to the life of the mother by way of suicide.

In 2016, one termination was carried out because of a risk to the life of the mother by way of suicide.

The figures for 2017 will be published in June of this year.

Question 07

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Savita Halappanavar on 28 October 2012 at University Hospital Galway. She was 17 weeks pregnant. The cause of death was recorded as severe sepsis, E.coli in the bloodstream and a miscarriage at 17 weeks.

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Investigations into her death did not specifically examine whether Article 40.3.3 had any act or part in her illness but two of the three recommended further scrutiny of the law of the day.

Both the coroner and the author of the HSE’s independent investigation, Professor Sabaratnam Arulkumaran made clear that changes in law would be welcome.

Hiqa did not mention the Eighth Amendment or the Constitution in its report, but detailed 13 times where there were missed opportunities to intervene and save her life.

During the Oireachtas committee hearings last year, Professor Arulkumaran said:

“It was very clear to me during the inquiry that the thing preventing the physician from proceeding was the legal issue because she repeatedly said she was concerned about the legal issue. I will give a little bit of explanation.

The mother was sick. There was no question about that. Even at the last minute they were using a hand probe to see whether the baby’s heartbeat was present or not. Any junior doctor would have said it was a serious condition and they must terminate.

“They were just keeping her going because of the mere fact the heartbeat was there. The legislation played a major role in making a decision. Somebody else might say they would have done the termination much earlier. That is a personal interpretation. It is why things are made difficult because of the legislation.

“I agree that if the legislation had been different, Savita’s case would not have happened.”

TheJournal.ie‘s news editor Sinéad O’Carroll has re-examined the case and the subsequent reports here.

[Update 22 May: Dr Arulkumaran joined Savita's parents in calling for a Yes vote in the referendum. He told reporters at an event: “The law as it stands is not enough to save the permanent health of the woman so I think it’s the right time to consider that and to change and to say ‘Yes’ to this particular referendum.”]

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There is no straightforward answer to this question yet. Rónán Duffy has been investigating, and found that the Minister for Health plans to respond to such questions if the referendum is passed on 25 May.

However, the cost implications of the wider introduction of abortion services into Ireland was an issue that was discussed during the Oireachtas Committee on the Eighth Amendment.

It is proposed that abortion would be made available without restriction up to 12 weeks of pregnancy and it is envisaged that this would take place in most cases in a GP setting.

In terms of the cost of such terminations, it would depend on the deals struck for the supply of the medication and the committee heard that this would be cheaper if carried out by the State.

“Misoprostol is a generic drug and very inexpensive, the price is cents per tablet. Mifepristone is now also very inexpensive. It can be sourced in bulk for approximately $3.50 per tablet. There are models in the world in which ministries of health procure it directly from the manufacturers. That is the cheapest model,” Dr Ronald Johnson told the committee.

As soon as it is run through the private sector, there are import taxes and a mark-up at approximately five places along the way. It should be and can be cheap, but it is not always.

Read more from the investigation here.

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Simon Coveney said in a column with the Times Ireland Edition that abortion clinics will not be a feature in Ireland if the Eighth Amendment is repealed.

His government wants a GP-led system.

However, the detail of that has yet to be worked out.

It is proposed that abortion would be made available without restriction up to 12 weeks of pregnancy and it is envisaged that this would take place in most cases in a GP setting.

The extent to which private abortion clinics would be part of Ireland’s future provision of services is unclear – bar Coveney categorically ruling them out (but again with little detail of how) – but there is no reason to believe they will not be present.

Speaking to TheJournal.ie, Peter Boylan welcomed the intervention from Coveney, saying it was “reassuring”.

Asked how a GP-led system would work practically, he said:

If you look at the numbers, if only 100 GPs in the country were to provide this service, they would see maybe two cases every fortnight or every month. The numbers are not great when they’re spread out over the year, and they’re also in every single county across Ireland.

Source: TheJournal.ie/YouTube

[Update 21 May: Taoiseach Leo Varadkar gave more detail on this question in an interview with Seán O'Rourke on RTÉ radio on 18 May. He echoed his Tánaiste's words when he said there would not be abortion clinics in Ireland. He explained that hospitals would have to apply for licenses to carry out the procedures. He added:

"There will be a licensing regime so really only hospitals will carry out surgical procedures. There’s no provision for abortion clinics in the draft legislation."]

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This so-called pause period is included in the draft legislation. If a woman who is less than 12 weeks pregnant wants to terminate her pregnancy, she will have to visit her GP. After that initial consultation, she will have to wait three days and return for a second visit before she is prescribed the necessary pills.

It is envisioned that she will take the first pill while in the presence of her doctor, and the second one or two days later at home.

Similar rules operate in the Netherlands and Portugal.

Source: TheJournal.ie/YouTube

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The type of abortion a woman or girl has depends on a number of factors, including:

  • how many weeks pregnant she is
  • any medical conditions she may have
  • whether she wants to be sedated

They are divided into two categories: medical or surgical. Medical abortions mean the woman takes two medications -  mifepristone and misoprostol – more commonly known as the ’abortion pill’ which can be taken up to 24 weeks.

Different doses are prescribed depending on the gestation of the pregnancy. If the referendum passes, this is likely to make up the majority of abortions in Ireland through a GP-led service.

Surgical abortion is carried out by vacuum aspiration up to 15 weeks of pregnancy and by dilation and evacuation between 15 and 24 weeks of pregnancy. The latter would be done in a hospital setting in exceptional circumstances.

You can read more about the different types of abortion procedures here.

[Update 17 May: Related to this question, readers have asked for more detail about the process and what happens to the foetus and if it feels pain.

The Journal of the American Medical Association (JAMA) examined the issue in this study and said that "evidence regarding the capacity for fetal pain is limited" but added that "fetal perception of pain is unlikely before the third trimester".

Explaining their conclusion, the authors say: "Pain is an emotional and psychological experience that requires conscious recognition of a noxious stimulus. Consequently, the capacity for conscious perception of pain can arise only after thalamocortical pathways begin to function, which may occur in the third trimester around 29 to 30 weeks’ gestational age, based on the limited data available.

Cutaneous withdrawal reflexes and hormonal stress responses present earlier in development are not explicit or sufficient evidence of pain perception because they are not specific to noxious stimuli and are not cortically mediated.

Speaking in more lay terms on RTÉ's PrimeTime on 15 May, Professor Paula Murphy - a developmental biologist who specialises in embryonic and foetal development - explains, "Up to 24 weeks, it's not possible for any awareness or pain sensation even though the nervous system is being constructed.

"Some people point to reflex responses in the foetus before that - a foetus will respond to touch - but this is a spontaneous reflex that is controlled through the spinal cord, not through the front of the brain where awareness would be recorded."]

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Editor’s note: We have updated this entire answer as there has been further commentary around it. 

It is the only overt constitutional protection but the legal world is divided on whether repealing the Eighth would mean there are no rights whatsoever conferred on the unborn in Bunreacht na hEireann.

Earlier this year, a case landed in the Supreme Court which looked at this question.

In its complex and significant ruling in the deportation case, the seven-judge panel clarified that the unborn has no constitutional rights beyond the right to life, and that references to “the unborn” do not mean an unborn child.

However, they found that the Minister “is obliged” to consider pregnancies and the rights that the unborn will acquire on birth “as a relevant factor” in deportation cases.

You can read more about that case and what it means for the Constitution here and here.

Former Chief Justice Ronan Keane wrote a piece for the Irish Times outlining why he believes there could still be constitutional rights for the unborn. Read that here. He was responding to a letter by retired judge of the High Court Bryan McMahon who said the opposite – that repealing the Eighth would be there would be be no constitutional protection for the unborn. You can read that letter here.

There will still be legislative protections for the unborn if the Eighth Amendment is repealed.

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The draft proposal released by the Department of Health deals with this question under Head 7, which looks at early pregnancy (up to 12 weeks).

It outlines how it will be lawful to terminate a pregnancy if a medical practitioner (a registered doctor), in his or her reasonable opinion formed in good faith, certifies that it has not exceeded 12 weeks.

The General Scheme adds: “For the purposes of this Head, ’12 weeks of pregnancy’ shall be construed in accordance with the medical principle that pregnancy is dated from the first day of a woman’s last menstrual period.”

Dr Peter Boylan, the chairman of the Institute of Obstetricians and Gynaecologists and the former Master at Holles Street, explains how a doctor will come to his/her decision:

Source: TheJournal.ie/YouTube

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Again, let’s stress that we are talking about draft legislation here.

For the purpose of these questions, we’ll presume the draft legislation is turned to law. In that case, the 72-hour reflection period relates to early pregnancy – that is before 12 weeks.

Head 4 of the General Scheme deals with situations where there is a risk to the life or the health of the mother, while Head 5 specifically with emergencies when there is a risk to her life or health.

In both those situations, terminations are lawful without the 72-hour reflection period. In the case of non-emergent risk, two doctors must agree and certify that there is a risk to the life or serious risk to the health of the mother; that the foetus has not reached viability (around 24 weeks) and that a termination is needed to avert the risk.

In the case of an emergency, one doctor can certify that in his or her opinion, formed in good faith, that there is an immediate risk to the life or serious health of the woman and the only way to avert that risk is to terminate the pregnancy.

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This is a somewhat complex, technical question so we’ve drafted in Trinity College Assistant Professor David Kenny to help with the answer.

The constitutional expert says that it “not very likely the Irish Supreme Court would play such a significant role in Irish abortion law if the Eighth Amendment were repealed”.

He adds that the reasons for this are complicated but he expounds on them here.

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It is not compulsory (or mandatory) to vote in Ireland. It is in other countries such as Australia.

There will be no vote registered for you.

There are no repercussions to oneself if you don’t.

But if you change your mind, here’s a handy guide to voting.

Source: TheJournal.ie/YouTube

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The one you are on is pretty good.

The Referendum Commission has also published its independent guide to the referendum, which you can find on its dedicated website here, along with FAQs and latest news.

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No, she cannot. Rape is not a grounds for a lawful termination under our current laws.

There may be some confusion because of what happened in the X Case.

In the X Case, the Supreme Court ruled that as the complainant’s life (a victim of child sexual abuse and rape) was at risk from a threat to suicide, she was allowed to have a lawful termination in Ireland.

That was legislated for in 2013 with the Protection of Life During Pregnancy Act.

So as the current situation stands, if three doctors – one obstetrician and two psychiatrists – all agree and certify that a woman is suicidal and the threat of suicide can only be averted if a termination is carried out, then she can be permitted to have it in Ireland.

Since it became law, seven such terminations have been carried out.

Terminations are currently not lawful on the grounds that a woman has been raped.

Arguments have been made by lawyers on both sides about what can be done about this situation. Here’s a look at those differing opinions.

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The sentence our reader references appears in a page on the Referendum Commission’s guide to the present legal position in Ireland. It states:

“In 2013, the Oireachtas passed the Protection of Life During Pregnancy Act. It regulates termination of pregnancy where there is a real and substantial risk to the life of the woman.

“The present legal position is therefore that it is lawful for a pregnancy to be terminated only where it poses a real and substantial risk to the life of the mother, including a risk of suicide. This is determined in accordance with the 2013 Act. Otherwise, it is a criminal offence to intentionally destroy unborn human life.”

The General Scheme, published by Minister Simon Harris ahead of the 25 May vote, outlines how the government wants to legislate for abortion in the event of a Yes vote.

It says: “It shall be an offence to intentionally end the life of a foetus otherwise than in accordance with the provisions of this Bill.”

A person who is guilty of this offence shall be liable to a prison term of up to 14 years.

This, however, does not apply to a pregnant woman in respect of her own pregnancy.

To date, nobody has been prosecuted for having an abortion in Ireland.

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Short answer: Yes.

Head 15 of the General Scheme of A Bill to Regulate for the Termination of Pregnancy deals specifically with conscientious objection.

It states: “…nothing in this Bill shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to assist in carrying out, a termination of pregnancy… to which he or she has a conscientious objection.”

The only exception is where there is a risk to the life or serious health of the woman in an emergency where it could be the doctor’s duty to participate in a termination.

Where there is a conscientious objection, the doctor must make arrangements to transfer the patient from his/her care to enable her to “avail of the termination of pregnancy concerned”.

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Note: This answer was updated with new information on 21 May. 

Reporter Michelle Hennessy asked a number of representative organisations where their members stood on the issue.

The Institute of Obstetricians and Gynaecologists articulated its position in January, supporting the recommendation of the Oireachtas committee that the Eighth Amendment be removed.

“The Institute of Obstetricians and Gynaecologists supports the recommendation of the Joint Committee on the Eighth Amendment to the Constitution that Article 40.3.3 be removed from the Constitution. The Institute looks forward to continuing to assist in informing legislation to enhance women’s health and safety.”

The Institute surveyed all members in a survey and 81% of the 79 respondents supported repealing the Eighth Amendment. The institute has 200 members.

All 19 maternity units are represented by the organisation. Nineteen out of 25 members of the executive attended an extraordinary general meeting held in January. There was one abstention and 18 others voted in favour of repeal at that meeting.

Seventeen obstetricians from the South/Southwest Hospital Group this week signed a letter calling for the head of the organisation, Dr Peter Boylan to either step back from the campaign or his job. However Boylan said seven of those who signed it were not even members of his organisation.

The Master of Holles Street Dr Rhona Mahony is in favour of repeal and is campaigning with the Together4Yes group.

The Master of the Rotunda Professor Fergal Malone spoke at the Eighth Amendment Committee’s hearings, and told of the barriers for couples who receive a fatal foetal diagnosis and the dangers of having to split healthcare between two jurisdictions – he also shared the example of one woman who died on a flight home after undergoing a termination.

On 21 May, he made a fresh statement calling for a Yes vote. He told reporters: ”We’re very concerned at patients sourcing medications from the internet, in good faith, hoping to arrange for their own healthcare but not knowing what it is that they’re actually taking.”

The Coombe’s Dr Sharon Sheehan hasn’t publicly taken a position on the referendum and could not be reached for comment.

The Irish Medical Organisation - which represents thousands of doctors in all disciplines – said it hopes “for a compassionate, informed debate which leads to clarity around the legal context in which doctors can make various decisions and which facilitates the right of individual doctors to act in line with their conscience confident that alternative, legally sound medical support will be available for the patient in question”.

The Royal College of Physicians of Ireland does not have a position on the forthcoming referendum.

The Irish Hospital Consultants Association (IHCA) is not taking a position on the referendum.

The head of the National Association of General Practitioners told TheJournal.ie that the group is taking a neutral stance on the 25 May vote.

As of 23 May, 1,517 medics have added their names to the Doctors for Yes list. All of these doctors have to provide their Irish Medical Council registration number when they sign up.

They were not required to provide their speciality when they signed, but of those who did:

  • 400 are listed under General Practice
  • 113 are listed under Obstetrics and Gynaecology
  • 104 are listed under Psychiatry
  • 88 under Anaesthesia
  • 79 under Paediatrics
  • 79 under Surgery
  • 36 under Emergency Medicine
  • 29 under Radiology
  • 8 under Oncology
  • 294 under medicine.

TheJournal.ie asked the Medical Alliance for the 8th if they had a similar list of medics who are supporting a No vote and was informed they did not. On the group’s website, however, there is a list of committee member names, including six doctors and two nurses.

A number of GPs and nurses representing members of their profession who support a No vote held a press conference on 13 May in which they argued that the government’s draft legislation could lead to “a disaster” for the health service.

A group of six Donegal GPs also issued a letter saying they refute the pro-choice movement’s claims that the Eighth puts the lives of pregnant mothers at risk.

Across all disciplines, the Irish Medical Council has 21,795 doctors registered on its books.

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From September to December 2017, a group of 22 TDs and senators questioned medical and legal experts, as well as people who had personal experiences related to the topic in the Eighth Amendment Committee.

In its report, the Oireachtas committee recommended that the Eighth Amendment should be repealed, and that terminations should be allowed up to 12 weeks of pregnancy “with no restriction as to reason provided that it is availed of through a GP-led service delivered in a clinical context”.

It also recommended:

  • termination of pregnancy should be lawful where the life or health of the woman is at risk and that a distinction should not be drawn between the physical and mental health of the woman
  • provision for gestational limits for termination of pregnancy should be guided by the best available medical evidence and be provided for in legislation
  • that any assessments in relation to the termination of pregnancy where the life or the health of the woman is at risk should be made by no fewer than two specialist physicians
  • that it shall be lawful to terminate a pregnancy without gestational limit where the unborn child has a foetal abnormality that is likely to result in death before or shortly after birth
  • the law should not provide for the termination of pregnancy on the ground that the unborn child has a significant foetal abnormality where such abnormality is not likely to result in death before or shortly after birth

The majority of speakers to the commitee, both Irish and international, pointed out the issues that have arisen and still arise due to the Eighth Amendment.

Orla Ryan – along with Rónán Duffy sat through each and every minute of the hearings – has a full recap here.

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Cormac Fitzgerald, TheJournal.ie‘s reporter, took a look at a few issues around consent.

In relation to whether a potential father would have any legal rights in relation to whether a woman may seek a termination, it is expected that the current law won’t change.

Under the regular laws of medical consent, adults do not need the consent of third parties to undergo medical treatment.

Currently, adults do not need the consent of third parties to undergo any operation.

Under current laws, a woman does not need to seek the consent of the father before travelling abroad for an abortion.

It has not been suggested that the current law would change around this should the Eighth Amendment be repealed.

We also received some questions around parental consent.  

Head 14 of the government’s proposed law deals briefly with the idea of consent to medical treatment.

The Head states:

Nothing in this Bill shall operate to affect any enactment or rule of law relating to consent to medical treatment.

Currently, under Section 23 of the Non-Fatal Offences Against the Person Act a minor aged 16 or over can consent or withhold consent to medical treatment as though they were an adult.

For children under the age of 16, the HSE National Consent Policy states that it is best practice to encourage them to involve their legal parent or guardian in their healthcare choices.

This policy says that only in exceptional circumstances would health and social care interventions be provided to minors without the knowledge or consent of their parents.

A Health Department spokesperson told TheJournal.ie that for the duration of the referendum campaign it was not in a position to comment on queries related to the referendum or to redirect the queries.

According to Mairead Enright – a spokesperson with the pro-Repeal group Lawyers for Choice – this would seem to suggest that there will be no special provision made for parental consent in cases where a girl under 18 needs an abortion.

There are no decided cases in law in which a child has sought an abortion without the knowledge of her parents, but a Repeal of the Eighth Amendment is not likely to change the laws around consent as listed above.

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Very few – and they mostly relate to safety and littering.

No authority has a remit to regulate the content of posters in a campaign.

Local authorities can only remove posters if they are found to have been erected in breach of any regulations that do exist.

  • A poster can be removed if it is deemed “that it is in the interests of amenity or of the environment of an area to do so”.
  • The name and address of the printer must also be on all posters. If the name and address are omitted, the sign is treated as litter and can be taken down by the council.

PastedImage-34181 Source: Leah Farrell via RollingNews.ie

On the back of councils receiving a number of complaints at the beginning of this referendum campaign, Paul Hosford and Gráinne Ní Aodha looked at the issue. Here’s what they found.

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This has been a contentious one so far – and from early on.

Back in April, Rónán Duffy took a look at the situation.

At that time, both sides insisted that the funds they raise comply with regulations. Here’s what they told us.

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Unlikely.

If there is a Yes vote, it means the government has passed a referendum it put to the people – so for its members to want to roll back on it immediately would be unusual to say the least.

If there is a No vote, Taoiseach Leo Varadkar has said he will respect the result.

“I have to accept the outcome of referendums and elections.”

“No, not in the foreseeable future, certainly not under this government or under this Dáil,” he responded when asked if another vote could be held in the near future.

However, that is not to say that political pressure could be applied by either side in the coming years.

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While the morning after pill is available and used by some victims of rape, it is only effective in the 72 hours after conception. This, according to Noeline Blackwell of the Dublin Rape Crisis Centre, is not enough time.

We asked her to respond to this question:

“People do not immediately report rape. Some will, but many won’t.

“Some can’t admit they were raped themselves. Some will go to sexual assault unit and get treatment, but many others won’t.

“Very often a woman won’t report it at all. Sometimes, the first time she will want to talk about it is when she realises she’s pregnant.

“Rape is one of the most under reported crimes in the country. Some won’t say it to police, to friends or family or even to us.

“It’s a myth that people immediately report rape because they know it’s wrong and go to the right people and get the right treatment.

“It can take hours, days, months, weeks and years to say it to anybody.”

Question 38

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This has become a big question in various US states with some having debates around whether burials or cremations should be a legal requirement following abortions, miscarriages and stillbirths.

For example, the LA Times reported last year that “women who suffer miscarriages at hospitals in Indiana are now required to fill out forms specifying whether they intend to arrange a private cremation or burial, or if the hospital should dispose of the remains through a mass cremation”.

The newspaper says that most hospitals and abortion clinics have contracts with professional companies to “dispose of fetal and embryonic tissue according to the protocols governing medical waste”.

The situation in Ireland, as envisioned by the draft legislation, will be different as a GP-led service will mean most women will be at home.

The British Pregnancy Advisory Service says the following about fetal remains in the case of abortion:

“You may not have specific wishes regarding the disposal of the fetal remains. In that case we would dispose of them in a sensitive way. We usually collect and store the remains separate from other clinical waste before sending them to be incinerated.

“You may take the fetal remains away at any gestation and regardless of treatment type and make your own arrangements for them. This may include arranging a private service, burial or cremation. If you wish to take the remains away, we shall place them in a container, which is opaque (you cannot see through it) and watertight. The fetal remains will be inserted into the container in a bag made of biodegradable material.

“If you wish, you can contact a funeral director yourself to arrange a service, burial or cremation. If you would like some specialist help with the service, for instance from a Humanist adviser or a community faith leader, a funeral director should also be able to provide you with a relevant contact. You can also contact a cemetery or crematorium directly.

“There will probably be a cost to you for a service, burial or cremation but this need not be expensive. It may be worth approaching a number of funeral directors for information about their costs and what services they offer.”

Question 39

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This is what the HSE says about female sterilisation and who can request it – and who is most likely to be able to get it.

“Almost any woman can be sterilised. However, sterilisation should only be considered by women who do not want any more children, or do not want children at all. Once you are sterilised, it is very difficult to reverse the process, so it is important to consider the other options available.

“Surgeons are more willing to perform sterilisation when women are over 30 years old and have had children.”

On partner consent, the Executive adds:

“You do not need your partner’s permission to be sterilised, but some doctors prefer it if both partners agree to the operation.”

It also has a segment on its website which deals with regret. It says: “Some women who have been sterilised regret having it done, especially if they were under 30 years old, had no children or were not in a relationship at the time. It is difficult to reverse the operation, so it is essential that you are sure before you have it done.

Never get sterilised if you are under stress, especially if you have just given birth or had a miscarriage or an abortion.

The HSE also strongly recommends that a woman in a relationship would opt for her partner to have a vasectomy instead. “This procedure is simpler, less invasive, and there’s a better chance a reversal will be successful if you change your mind in the future,” it advises.

Furthermore, it asks women to undergo counselling before going ahead with the procedure. See more here.

Question 40

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Written in English, if the current version is repealed, Article 40.3.3 will read:

“Provision may be made by law for the regulation of termination of pregnancy.”

As Gaeilge, it will read:

“Féadfar socrú a dhéanamh le dlí chun foirceannadh toirchis a rialáil.”

Dr Seán Ó Conaill teaches Dlí Bunreachtúil (Constitutional Law through Irish) at the School of Law at University College Cork. He has extensively examined the issue, concluding:

“Overall the wording of the proposed amendment contained in the Thirty-sixth Amendment of the Constitution Bill 2018 follows the established constitutional and legislative precedent and while no two language texts can be exactly the same it equates well to English text with a few interesting features.”

Read more of his analysis here.

Question 43

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This question was asked in terms of legal abortions in Ireland. We’ll look at how many abortions have taken place under the Protection of Life During Pregnancy Act 2013.

In 2016 – the most recent year we have figures for - 25 terminations were carried out in Irish hospitals.

These included eight procedures arising from a risk to life from physical illness, sixteen from emergencies arising from physical illness and one arising from a risk from suicide.

In 2015, the numbers were extremely similar. There were a total of 26 terminations carried out: 14 as a result of there being a risk to life from physical illness; nine in emergency situations and three because of a risk to life by suicide.

In 2014 – the first full year of data – there were also 26 terminations. Of these, 14 were as a result of there being a risk to life from physical illness; nine in emergency situations and three because of a risk to life by suicide.

Read the HSE’s reports here.

Question 42

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The current law around terminations of pregnancy is the Protection of Life During Pregnancy Act 2013.

It allows for terminations if there is a risk to the life of the pregnant woman.

In the case of there being a risk to her life from physical illness, two doctors – one an obstetrician and one of a relevant speciality – must agree and sign off that the risk can only be averted by a termination.

The law is slightly different when the risk is one of suicide.

In those cases, three medical practitioners – one obstetrician and two psychiatrists – must sign off that there is a real and substantial risk to life and the only way to avert that risk is to terminate the pregnancy.

There are no grounds for having legal terminations in the cases of rape, incest, serious illness to the mother or fatal foetal abnormalities.

Question 41

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This question came up during the Eighth Amendment committee hearings.

It is difficult to collate data for Ireland outside of those terminations that occur under the terms of the Protection of Life During Pregnancy Act (see above).

Dr Patricia Lohr, medical director of the British Pregnancy Advisory Service, however, told the Oireachtas Eighth Amendment Committee there is “little difference between the reasons why women from Ireland present compared to those from the UK”.

She said the reasons given by women and girls seeking abortions are “diverse and multifaceted”.

They include:

  • financial hardship
  • knowledge that her family is complete
  • inadequate partner or family support
  • domestic violence
  • a feeling they are not in the position to care for a baby at that point in their lives

“Of Irish women who receive abortion care in the UK, 70% are married or with a partner. Nearly half have already had at least one previous birth, meaning they are already mothers. All this is in keeping with information we have for women from the UK,” Lohr stated.

She noted that, while some abortions “take place of pregnancies that were planned and indeed wanted, such as those for foetal anomaly, the majority of the women we see were trying to avoid pregnancy when they conceived”.

Lohr said the majority of women from Ireland who have had abortions in the UK were using a form of contraception when they conceived.

YES NO ARGUMENTS

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Together4Yes is an umbrella group for about 100 different organisations advocating for a repeal of the Eighth Amendment. You can find its website – along with its arguments - here.

The official campaign of the No side – those who want to retain the Eighth Amendment – is called Save the 8th. You can find their website here.

TheJournal.ie‘s Nicky Ryan and Daragh Brophy have also accompanied both campaigns on various canvasses in the past few weeks. Details of what they saw and heard are collected here and here.

Question 44

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Currently, situations like this would be dealt with under legislation, rather than the constitution.

Under the Protection of Life During Pregnancy Act, Section 22 states:

22. (1) It shall be an offence to intentionally destroy unborn human life.

(2) A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.

(3) A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions.

Therefore, if there is an investigation and a person is found to have intentionally destroyed unborn human life, they will be charged and a criminal trial will be held. If convicted, they will face prison.

Head 18 of the draft legislation published by the government ahead of the referendum deals with the same issue.

It reads:

(1) It shall be an offence to intentionally end the life of a foetus otherwise than in accordance with the provisions of this Bill.

(2) Subhead (1) shall not apply to a pregnant woman in respect of her own pregnancy.

(3) A person who is guilty of an offence under this Head shall be liable –

  • (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or to both, or
  • (b) on indictment to a fine or imprisonment for a term not exceeding 14 years, or to both.

(4) A prosecution for an offence under this Head may be brought only by or with the consent of the Director of Public Prosecutions.

Question 47

Question 46

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Reporter Paul Hosford took these questions together and looked at how Ireland’s proposed laws would compare to other countries in Europe, including the rates of those nations.

His investigation is here.

We were also asked if abortion rates increase after abortion is legalised. To answer this question we’re going to look at Portugal, which legalised abortion up to the 10th week of pregnancy following a referendum in 2007.

Some 59% of voters backed this referendum and the Voluntary Interruption of Pregnancy Act came into effect in 2008.

Prior to this, women faced up to three years in prison for having an abortion, except in limited circumstances such as rape or if there was danger to the health of the mother.

In 2015, Portugal altered this legislation, adopting a bill aimed at making women pay for terminations, and requiring more stringent tests before the procedure.

According to data compiled by the Portuguese Directorate General of Health, about 160,000 abortions were carried out in the country from 2008 to 2016. It has a population of about 10.3 million people.

In the decade since terminations were decriminalised, 2011 was the year with the highest number of abortions – with almost 20,000 reported. This number has reduced year-on-year since then, with just under 16,000 abortions taking place in 2016 (the most recent figures available).

The Portuguese Society of Obstetrics and Maternal-Foetal Medicine has said it expects this number to stabilise at around 15,000 cases per year.

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There are two specific cases where the Eighth Amendment has been mentioned by doctors in relation to the death of a patient.

Professor Sabaratnam Arulkumaran, the doctor who led the investigation into Savita Halappanavar’s death found that ”the interpretation of the law related to lawful termination in Ireland and particularly the lack of clear clinical guidelines and training is considered to have been a material contributory factor in this regard”. (More on that here.)

The second case is that of Michelle Harte.

In 2010, Harte had been diagnosed with cancer and wanted to undergo a clinical trial but couldn’t due to her pregnancy. Her doctors had advised a termination was the best option due to the risk to her health but Cork University Hospital’s ethics committee ruled it could not be performed in that hospital.

There was a delay in the hospital arriving at that decision. There was also a delay to get the patient a passport. Eventually, she travelled to the UK for a termination.

As she could not receive treatment during this time because of the pregnancy, her condition deteriorated quickly, Paul Cullen reported in the Irish Times after she settled a case with the State. It paid “substantial compensation” to Harte just months before she died in November 2011.

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This has been claimed numerous times throughout the campaign so TheJournal.ie Factcheck examined the situation.

There are a number of differences between the British law and the proposed Irish law. They are:

  • 72-hour waiting period: Under the proposed Irish law, a pregnant person would have to wait 72 hours after their doctor certifies that they may have a termination, if they want a termination during the 12-week window. There is no waiting period at all under British law.
  • Injury to the physical or mental health of existing children: Under British law, a person can get a termination if the continuing of the pregnancy would involve injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated. This does not exist in the Irish proposed law.
  • Disabilities: Under the British law, termination is allowed if there is a substantial risk that if the child were born it would suffer from “such physical or mental abnormalities as to be seriously handicapped“. The Irish law does not mention disability as a grounds for termination. It says termination can take place if two medical practitioners certify that the foetus has a condition that is likely to lead to its death before or shortly after birth.
  • 12 weeks and viability: In Ireland, terminations could take place under the proposed law up to 12 weeks for any reason. After 12 weeks, the general scheme says there must be a “risk to the life of, or of serious harm to the health of, the pregnant woman”, a termination could avert this risk (health means physical or mental health), and the foetus has not reached viability (usually around 23/24 weeks or six months of pregnancy). There is no 12 weeks provision in the British law – it says the pregnancy must not have exceeded 24 weeks.
  • Injury vs serious harm: The British law says that terminations can be carried out if the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health of the woman or any of existing children. The proposed Irish law allows for termination if there is a risk to the life of, or of serious harm to the health of, the pregnant woman. (Health is defined in the bill as physical or mental health). Ireland sets a higher bar here with ‘serious harm’ compared to ‘injury’.

Read more from the Factcheck here.

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It would, in the words of the Referendum Commission, be unlikely. 

Speaking to TheJournal.ie, the chair of the Referendum Commission Judge Isobel Kennedy answered this question.

She said:

“Article 40.3.3, in brief, acknowledges the right to life of the unborn, so in order to vindicate and to defend that right, one of the ways of doing that is by way of a criminal sanction. And it is the duty of the State to vindicate and to defend a constitutional right so we, the Referendum Commission, think it is unlikely that it would be removed from the statute books.”

Source: TheJournal.ie/YouTube

A Bill to reduce the penalty for procuring an abortion from a maximum 14-year-prison sentence to a €1 fine was defeated in the Dáil last year.

The government did not support the proposed legislation as the Attorney General had advised it was unconstitutional.

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We’ve received multiple questions about abortion pills – about their efficacy, their safety, their legality and their proliferation in Ireland.

Medical abortion involves taking two pills – mifepristone and misoprostol. The first pill disrupts the pregnancy, and the second causes the uterus to contract and expel its contents in a similar way to a miscarriage.

It’s currently illegal to take abortion pills in Ireland.

However, it’s estimated that around five Irish women request an abortion pill everyday from telemedicine websites such as Women on Web.

The Department of Health estimates around three women a day in Ireland take abortion pills. Women on Web do not charge explicitly for the pills but ask for a donation fee of about €70 to €90.

In the past 10 years, more 6,000 abortion pills have been seized by Irish authorities, according to the Health Products Regulatory Authority.

In its submission to the Oireachtas Committee on the Eighth Amendment, the Irish College of General Practitioners said, “There is clearly increased use of ‘illegal abortifacients’ both from anecdotal evidence from GPs, objective measures such as customs seizures, and a recent paper which suggests that 5,560 women requested abortion pills between 1 January 2010 and 31 December 2015.”

It also said that “women who use abortion pills ordered online may fear presenting to
Irish health services if they develop problems”.

Doctors say that abortion pills are safe when taken under medical supervision but can be dangerous in other situations. Dr Rebecca Gomperts of telemedicine service Women on Web is particularly concerned about women taking them in countries where abortion is illegal, as they may be reluctant to report any negative symptoms or to seek help.

Side effects and complications of taking the pills can include bleeding, possibly from an incomplete miscarriage, and infection. Positive Options, funded by the HSE Crisis Pregnancy Programme, says that pain, collapse, diarrhoea and shortness of breath can also be problems. 

“If a woman has excessive bleeding or pain, or other complications after taking an abortion pill, she should seek medical attention straight away from her GP, a family planning clinic or her local hospital,” the advice website continues.

Medical staff will always help a woman in this situation. Looking after her could be difficult if the staff do not know that a woman has taken these pills or what the pills contain.

“It is advisable to bring any information and packaging that comes with such pills to the hospital/GP/Family Planning clinic as it may help the medical staff in their diagnosis and the medical care they can give.”

Dr Boylan explains more:

Source: TheJournal.ie/YouTube

Gráinne Ní Aodha has more on this topic here.

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